Opinion
Index No. 301461/20
02-26-2024
43-25 Hunter Affordable Lessee L.L.C., Petitioner-Landlord, v. Carla Johnson, Respondent-Tenant.
Counsel for Petitioner: Belkin Burden Goldman, LLP Counsel for Respondent: New York Legal Assistance Group
Unpublished Opinion
Counsel for Petitioner: Belkin Burden Goldman, LLP
Counsel for Respondent: New York Legal Assistance Group
Logan J. Schiff, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of Petitioner's motion by order to show cause to vacate the automatic stay imposed by Respondent's Emergency Rental Assistance Program application and to amend the petition: NYSCEF 24-41.
Upon the foregoing cited papers, the decision and order on Petitioner's motion is as follows: Petitioner commenced this nonpayment proceeding in October 2020 seeking $1,064.85 in rental arrears. By order dated April 5, 2023, this court denied Petitioner's motion to lift the automatic stay occasioned by Respondent's then-pending application for assistance under the Emergency Rental Assistance Program ("ERAP") (L. 2021, c. 56, Part BB, Subpart A, § 8, as amended by L. 2021, c. 417, Part A, § 4)) (see NYSCEF 23).
Petitioner now moves to lift the ERAP stay following the approval and payment of $14,397 in ERAP funds statutorily earmarked for the period of July 2021 through February 2024, and for leave to amend the Petition to seek additional accrued arrears. Petition cites to well-established case law allowing for amendment of the pleadings to include post-petition rent (see, e.g. Ciampa Whitepoint, LLC v Transpacific, LLC, 181 N.Y.S.3d 818 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; 36 Main Realty Corp. v. Wang Law Off., PLLC, 19 N.Y.S.3d 654 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
The branch of Petitioner's motion seeking to lift the ERAP stay is granted without opposition, as it is undisputed a final determination was rendered on Respondent's application by virtue of its approval.
Upon restoration to the calendar, Petitioner asks the court to amend the Petition to include $17,572.91 in rent accrued through January 2024. Respondent opposes arguing that the arrears sought in the original Petition have been satisfied by non-government-earmarked post-petition payments of $6,846.98. Respondent claims these payments have mooted out the proceeding pursuant to RPAPL 731(4) and mandate dismissal before the court can consider Petitioner's proposed amendment.
RPAPL 731(4), as enacted by Housing Stability and Tenant Protection Act of 2019, provides that "in a nonpayment proceeding, payment of the full amount of the rent due prior to the hearing of the petition moots the basis for the proceeding" (Regency Village Management v Rodriguez, 121 N.Y.S.3d 510 [App Term, 2d Dept, 9th & 10th Jud Dists 2020], citing L 2019, ch 36, part M, § 13).
While there is scant precedent regarding what constitutes the "full amount of rent due" for purposes of RPAPL 731(4), this court interprets the statute to mean the amount due under the petition (see 36 Main Realty Corp., 19 N.Y.S.3d 654 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] [noting that the power to fix the rent due is governed by the petition "which alleges the relevant facts upon which the proceeding is based and sets forth the relief sought [pursuant to RPAPL 741]").
With respect to what constitutes the "hearing of the petition" for purposes of RPAPL 731(4), the court finds instructive case law in the context of RPAPL 743, which allows a respondent to answer in a holdover "at the time when the petition is to be heard" and has been interpreted to include any adjourn date up to and including the date of trial (see Virga v Virga, 2024 NY Slip Op 501359[U] [Civ Ct, Bronx Co 2024], citing Picken v Staley, 2011 NY Slip Op 33237[U] [Civ Ct, NY Co 2011]); In-Towne Shopping Centers Co v DeMottie, 851 N.Y.S.2d 70 [App Term 2nd Dept, 9th & 10th Jud Dists 2007]); see also City of New York v Candelario, 156 Misc.2d 330 [App Term, 2d Dept, 2d & 11th Jud Dists 1993], affd in part and revd in part on other grounds 223 A.D.2d 617 [2d Dept 1996]).
Also relevant is CPLR 409, applicable to summary proceedings, and defining the "hearing" as the date upon which the court is to "make a summary determination upon the pleadings, papers and admissions to the extent that no triable issues of fact are raised," and CPLR 410 providing for an immediate trial to the extent triable issues are raised. Thus, where a summary determination or trial has not taken place as a result of an adjournment, motion, stay, or otherwise, the "hearing of the petition" cannot be said to have occurred (see DFS of Springfield, Inc. v DiMartino, 971 N.Y.S.2d 648 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [second appearance following adjournment of the proceeding constituted "the adjourned date for the hearing of the petition"]).
In the present matter, the court has not made a summary determination or commenced a trial, as the proceeding was initially stayed before the first appearance by virtue of Respondent's filing a hardship declaration pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020 in May 2021, and thereafter by Respondent's application for assistance pursuant to ERAP. As such, the court has never had occasion to "hear" the petition, and RPAPL 731(4) still applies.
With respect to whether the Petition has been satisfied, it is evident from Petitioner's ledger in support of its motion (NYSCEF 30) that even after excluding earmarked government payments, Respondent made payments in excess of the $1,064.85 sought in Petition, including payments in December 2020 and January 2021 totaling over $2,700. Accordingly, the court dismisses the Petition as moot pursuant to RPAPL 731(4) and CPLR 409(b) (see Sea Park E. LP v Beltran, 2024 NYLJ LEXIS 212 [Civ Ct, Kings Co 2024], citing Nat'l Park Bank v. Seaboard Bank, 114 NY 28, 35 (1889); Hughes v. Wagner, 4 A.D.2d 980, 980 [3d Dept 1957]; 600 Hylan Assocs. v. Polshak, 851 N.Y.S.2d 74 (App Term, 2d Dept 2007); cf. Avalonbay Communities, Inc. v Dukes, 187 N.Y.S.3d 475 [App Term, 2d Dept, 9th &10th Jud Dists 2023] [amendment of petition was warranted where statutorily earmarked ERAP payments "did not fully not satisfy the petition"]).
It is noteworthy that the Petition included $928.66 in additional rent not demanded in the 14-day rent demand that accrued after the demand but prior to filing. Arguably this amount should not be included for purposes of a 731(4) determination in the absence of amendment of the Petition, as a nonpayment must be predicated on a good faith rent-demand pursuant to RPAPL 711(2) that advises the tenant of the amount that must be paid in order to avoid litigation. Once this amount is excluded, Respondent would have only owed $136.19 under the Petition when filed.
In light of the foregoing, Petitioner's motion to amend the Petition is denied. This constitutes the decision and order of the court.